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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
A.M.
v.
K.C. & L.C., INTERVENORS
APPEAL OF: K.C. & L.C. 1637 MDA 2014
Appeal from the Order entered September 10, 2014
in the Court of Common Pleas of Wyoming County
Civil Division, at No(s): 2008-CV-807
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 02, 2015
K.C. and L.C., (“Intervenors/Parental Grandparents”), appeal from the
order entered on September 10, 2014, awarding A.M. (“Mother”) sole legal
custody and primary physical custody of the minor child, C.M.S. (“Child”)
born in August 2007, and, following counseling, granting Paternal
Grandparents periods of partial custody on the third weekend of every
month from Friday after school or 4:00 p.m. until Sunday at 4:00 p.m. and
two non-consecutive weeks in the summer. We affirm.
Mother and J.M.S. (“Father”) are natural parents of Child. See N.T.,
8/17/13, at 34. Mother resides in Springville, Susquehanna County, with
her fiancé, J.B. See id. at 33, 138. Mother and Father had one other child
together, who was given up for adoption approximately three years ago.
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See id. at 34. The record reveals that Father was not present for any of the
custody hearings or conferences, and has not been allowed any visitation of
Child since September 28, 2012. See id. at 35.
During Child’s early years, Mother and Father both had a persistent
history of drug and alcohol abuse. As a result, Child primarily resided with
Paternal Grandparents from approximately November 2010 until the trial
court order entered October 8, 2013.
Specifically, Mother was a heroin addict who began utilizing drugs at
the age of thirteen. See id. at 48. Mother was also charged with theft
related offenses in April 2011, and was placed in the Wyoming County Drug
Treatment Court program on April 13, 2011. See id. at 45-47. She
successfully graduated from the program on May 23, 2013. See id. at 48.
Mother has been sober since February 18, 2012. See id. at 49.
Mother has attempted to get physical custody of Child since the time
that she entered the Treatment Court program. See id. at 50. At first,
Mother was permitted phone contact with Child. Later, Mother’s contact with
Child was expanded to periods of supervised visitation. See id. at 52.
Following Mother’s relapse in February 2012, Mother’s visits with Child were
suspended. See id. Shortly thereafter, Mother was once again granted
supervised visitation of Child, and eventually was granted unsupervised,
over-night visitation. See id. at 52. At the time of the first hearing,
Paternal Grandparents had primary physical custody of Child, and Mother
had periods of partial physical custody.
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On October 8, 2013, the trial court awarded Mother sole legal custody
and primary physical custody of Child, and awarded Paternal Grandparents
periods of partial physical custody. Paternal Grandparents timely appealed
the order to this Court, which vacated the matter and remanded the case to
the trial court on May 28, 2014. Mother then filed two Petitions for Special
Relief.
Mother’s first petition requested that the order entered October 8,
2013, remain status quo following the decision of the Pennsylvania Superior
Court. The petition was granted on May 28, 2014. Mother’s second
petitionrequested that Child’s period of partial custody with Paternal
Grandparents be suspended. That petition was also granted. Thereafter, on
August 18, 2014, Paternal Grandparents also filed a Petition for Special
Relief seeking to reinstate their periods of partial custody.
A hearing was held on the Petitions. On September 10, 2014, the trial
court ordered that the best interests of Child would be served with Mother
having primary physical custody and sole legal custody of Child, and the
Paternal Grandparents having periods of partial custody. This timely appeal
followed.
Paternal Grandparents raise the following issue for review:
1. Whether the [l]ower [c]ourt’s ruling in awarding custody to
the Defendant, [A.M.], was an abuse of discretion, contrary to
the weight and sufficiency of the evidence, a failure to
properly and adequately consider the sixteen (16) best
interest factors and a failure to consider the best interest of
the minor child at issue?
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Paternal Grandparents’ Brief at 5.
Initially, we observe that, as the hearing in this matter was held in
August 2014, the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321 to 5340,
is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)
(holding that, if the custody evidentiary proceeding commences on or after
the effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).
In custody cases, our standard of review is as follows.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5338 of the Act provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. See 23 Pa.C.S.A.
§ 5338. Section 5328(a) of the Act sets forth the sixteen best interest
factors that the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-
81, n.2 (Pa. Super. 2011).
Section 5328 of the Act provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
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(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
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another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.1
In applying the Section 5328(a) factors, the trial court found the
following, which we paraphrase, below.
1. Which party is more likely to encourage and permit frequent
and continuing contact between Child and the other party.
Child’s birthday was on August 2, during the time when Paternal
Grandparents’ periods of custody were suspended. At the time,
Mother contacted Paternal Grandmother and offered to meet
Paternal Grandparents at McDonald’s following Child’s soccer
game so that Paternal Grandparents could see Child for his
birthday. Paternal Grandmother refused, and Paternal
Grandparents did not call Child on his birthday. Paternal
Grandfather testified that he declined to visit Child on his
birthday out of fear of violating trial court’s Order. Paternal
Grandfather further testified that he contacted his attorney
concerning visiting with Child on his birthday; however, Paternal
Grandfather did not file a petition to see Child. Mother noted
that she filed a Petition for Special Relief to end Paternal
Grandparents’ periods of visitation because Child’s contact with
Paternal Grandparents was not healthy. Mother noted that she
would like to continue Paternal Grandparents’ periods of custody
as long as Child’s visits with Paternal Grandparents are healthy,
and if Paternal Grandparents engage in some sort of counseling.
1
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services), which is not
applicable to the facts of this case.
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2. Abuse committed by a party or a member of a party’s
household. The trial court found no allegations of abuse in
either Mother’s or Paternal Grandparents’ homes.
3. The parental duties performed by each party on behalf of
Child. Evidence revealed that, since Child was a kindergarten
student and did not have much homework, Mother
maintained a schedule for Child which included books,
journals, and reading every night. Mother participated in a
library program with Child, and Mother has a discipline
system in place in which, if Child gets fifteen stars, he gets a
prize, and, if he loses stars, he loses privileges such as toys
or electronics. The trial court also found that Mother takes
Child to extracurricular activities, which Paternal
Grandparents refused to do. Mother has taken Child to
counseling sessions and participated in the sessions. Paternal
Grandparents have not participated in any counseling
sessions with Child, but have not been asked to do so by the
counselors.
4. The need for stability and continuity in Child’s education,
family life, and community life. Mother is scheduled to marry
J.B. on September 13, 2014, and Child is very excited to be a
part of the ceremony as the ring bearer. Mother has resided
with J.B. since obtaining primary custody of Child, and Child
and J.B. have become very close.
5. The availability of extended family. Since residing with
Mother, Child has been able to spend time with his cousin and
Mother’s fiancé’s family. The families have taken vacations
together in Ocean City, Maryland.
6. The Child’s sibling relationships. The trial court did not
consider this point since Child does not have any siblings.
7. The well-reasoned preference of the Child, based on Child’s
maturity and judgment. The trial court did not conduct an in
camera interview with Child due to his young age.
8. The attempts of a parent to turn the Child against the other
parent, except in cases of domestic violence where the
reasonable safety measures are necessary to protect the
Child from harm. Mother testified that Child is aware of the
custody action, and that she and Child’s therapist have been
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working with Child to deal with visitation and other problems
concerning Child’s relationship with Paternal Grandparents.
9. Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the Child’s emotional needs. The trial court found that, at
this time, Mother is better able to provide Child with a loving,
stable, consistent and nurturing home.
10. Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child. The trial court found that, since the court’s October
8, 2013 order, Child has resided primarily with Mother and
has attended Elk Lake School District. Child has completed
[k]indergarten and is currently enrolled in the first grade.
The court found that Child successfully participated in
extracurricular activities and will continue to do so during the
current academic year, and that Child attends Sunday School
with his cousin. Child has problems with bed wetting. Mother
testified that there is a correlation between bed wetting and
Child’s return from a weekend with Paternal Grandparents.
Mother has attempted to discuss the issue with Paternal
Grandmother, but she denies that bed wetting ever occurred
during Child’s visits with Paternal Grandparents. Paternal
Grandfather also testified that bed wetting never occurred
during Child’s visits with Paternal Grandparents. In addition,
although Paternal Grandparents did not have legal custody of
Child, they took Child to Child’s former physician, Dr.
Goodrich, without Mother’s consent. Paternal Grandparents
noted that they were worried about Child health, but never
spoke with Mother concerning the visit or the outcome of the
visit with Mother.
11. The proximity of the residences of the parties. The court
found that the parties live approximately fifteen miles apart,
despite Paternal Grandmother’s testimony that they live two
hours from each other.
12. Each party’s availability to care for Child or ability to make
appropriate child care arrangements. The trial court determined
that Mother is not working and was available to care for Child at
all times. Paternal Grandparents are also available to care for
Child.
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13. The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. Mother
testified that Maternal Grandmother gave Child tickets to a
wrestling event. Child was excited to attend the event due to his
involvement in wrestling as an extracurricular activity. As the
event was scheduled on a weekend that Child was scheduled to
be with Paternal Grandparents, Mother attempted to switch [the]
weekend with Paternal Grandparents, who declined. Mother
even offered the tickets to Paternal Grandparents to take the
Child to the event, but the Paternal Grandparents also declined.
Paternal Grandparents testified that they felt that the event was
inappropriate, and Mother had to petition the trial court
requesting permission to allow Child to attend, which was
granted by the court. Since many of Child’s extracurricular
activities fell on weekends that Paternal Grandparents had
custody, they would forego their period of custody and have
Mother pick up Child to take him to his activity. Paternal
Grandparents also did not attend any tee ball practices or
games. Paternal Grandmother testified that she felt the six
hours for a wrestling match or baseball game “away from the
farm” was an interruption since it was not a part of her
visitation.
14. The history of drug or alcohol abuse of a party or a member
of a party’s household. The trial court addressed Mother’s past
drug and history. Mother attends meetings approximately three
times a week and is living a sober lifestyle.
15. The mental and physical condition of a party or member of a
party’s household. The trial court found that Mother has
relocated from a trailer to a four bedroom home that sits on
approximately thirty acres in Susquehanna County,
Pennsylvania, two miles from where the trailer was located,
which Mother is renting with her fiancé. Child has his own
bedroom in the home. Mother testified that, in June of 2014,
she was contacted by the Susquehanna County Children and
Youth because allegations were made that Mother’s home was
unsafe, and she was suspected of utilizing drugs. Mother
voluntarily presented herself to Children and Youth for a urine
screen, which was negative, and a social worker inspected her
home. The investigation was closed as “unfounded.” Although a
representative of CYS testified that that the source of the
allegation made against Mother was confidential, Paternal
Grandfather testified that he was the one who called CYS.
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16. Any other relevant factor. The trial court found no other
relevant factors.
Trial Court Opinion, 9/20/14, at 8-19.
We have reviewed the trial court’s thorough analysis of the statutory
custody factors contained in its order and its opinion in light of the record,
and conclude that the record fully supports the trial court’s conclusions
regarding custody. Therefore, we find that the trial court properly
determined that it is in Child’s best interests to award Mother primary
physical custody and primary legal custody of Child, and, following
counseling, to award periods of partial physical custody of Child to Paternal
Grandparents.
Accordingly, we affirm the order of the Court of Common Pleas of
Wyoming County entered September 10, 2015.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2015
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J.M.S. v. A.M. v. K.C. and L.C.
Combined Opinion